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Structuring your
Information Management
to Ensure Litigation
Readiness
Julian Ackert, Principal
Washington DC
John Forsyth, HBOS
Edinburgh
Andrew Haslam, Consultant
London
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Agenda
 What is e-Disclosure Preparedness and why is it so
important now?
 What are global corporations doing today in response?
 How has this environment impacted US law firms?
 How has this environment impacted UK firms to date?
 How might UK firms be impacted in the future?
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Challenges of Electronic Data
1. Exponential Volume
2. Metadata
3. Unknowns
 Cost and risk in determining,
“Have we produced what we need to?”
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Drivers in electronic discovery
Rules
 New laws, i.e. changes to the CPR, FRCP
Complexity
 Increased complexity and dependency
 Increased use of computer systems
 Increased digital-only existence of data
Volumes
 Bigger storage volumes
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The Trend in U.S. Court Decisions
Company said they located and searched all relevant backup tapes, but had
not.
 $1.4 billion in damages, adverse inference instruction, default
judgment
Coleman v. Morgan Stanley
Employees deleted relevant e-mail, IT continued to rotate and overwrite backup
tapes.
 $29 million damages, adverse inference (in ordinary employment
case)
Zubulake v. UBS Warburg
Executives did not print e-mail subject to litigation hold, IT continued 60-day
purge
 $2.75 million fine, executives precluded from testifying
US v. Philip Morris USA
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What is Litigation Readiness
 “A better fence at the top of the cliff”
 Sound RIM as a good efficient business practice
 Becoming essential for certain firms i.e. SOX,
FSA, Basel 2 and MiFID
 May be part of due diligence in a M&A situation
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Why Litigation Readiness?
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Regulatory and Compliance drivers
Litigation issues
Data Protection problems
General information management “Best Practice"
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Corporate Strategies for Litigation
Readiness
1.
2.
3.
4.
5.
6.
7.
Profile your systems and data
Reduce the pool of backup/archival media
Extend records/retention policy to ESI
Establish “Preserve Now” team and process
Streamline litigation hold process
Manage outside counsel and vendors
Litigation Process “Outsourcing”
Changing the Corporate Architecture
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Emerging
“best
practices”
in
the
US
Emerging “best practices” in the US








Be first to put a reasonable plan in place, to your
advantage, then cost shift
Issue litigation hold quickly, narrowly, and often
Proactively involve IT at a level that gets results, pay
attention to spoliation via maintenance processes/
programs
Preserve quickly (‘anticipation’ of lawsuit), on a rolling
basis
Preserve metadata
Collect accessible data, broadly, cull later
Sample to reduce population of documents sent to review
‘Conceptual’ document review tools
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Efficiencies in e-disclosure
Original Volume (and Cost)
Present
Review
Host
Proactive
Process
Gather
Readiness
Preserve
Scope
Litigation
Reactive/technology
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The Challenge for Outside Counsel
1. Understand the details of client IT systems
 Think global
 Scope of data – locations, volume, timeframe, retention
 Preservation options, and cost to access, cull and produce
2. Preserve data/metadata upon ‘anticipation’
 Employee litigation holds should be robust, but may be
insufficient.
 IT should proactively preserve from a system standpoint
 Metadata, backup tapes, what is reasonable?
3. Develop ‘CMC’ strategy for negotiating
 Defensibility of preservation
 Accessibility/inaccessibility for collection
 Timeframe/format of production
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Discussion
Discussion
 How has this environment impacted UK firms to
date?has this environment impacted
How
UK
How
might UK
be impacted in the future?
firms
to firms
date?
How might UK firms be impacted
in the future?
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Discussion
Questions?
How has this environment impacted
UK firms to date?
How might UK firms be impacted
in the future?